there was no-one there. Person 29 said in his outline of evidence that while conducting an SSE, the troop located a large cache of rockets and a tunnel in the northern part of the compound towards the northern wall (exhibit R271 at [22]).
367 The respondents submit that the evidence of these witnesses changed in the witness box. The respondents submit that despite the manner in which the respondents' witnesses had been cross-examined, the case advanced by the applicant through his witnesses (after the respondents' witnesses had given their evidence) was that none of the respondents' witnesses were present in the tunnel courtyard at the time of the tunnel's discovery. The respondents submit that the obvious inference to be drawn is that the position changed for the reason that at the time the applicant served the outlines of evidence in reply for his witnesses, none of Persons 40, 41, 42 or 43 were on the respondents' witness list. After leave to subpoena those witnesses was granted by the Court in the circumstances identified in Roberts-Smith (No 12) at [49]–[54], decision pronounced 23 April 2021 and reasons published 6 May 2021, the applicant had to contend with four witnesses who were not only going to say they were present when the tunnel was discovered, but that they observed one or more Afghan males emerge from it. The respondents submit that one way in which to contend that the witnesses were not in the tunnel courtyard at the critical time was to shift the timing of the tunnel's discovery from a time during which the SSE process was being undertaken to a time before the compound had been declared secure. In that way, Persons 40, 41 and 42 could be said to have not yet reached the tunnel courtyard at the critical time, while Person 43 could be placed outside the compound where he and his patrol were still part of a cordon. Persons 40, 41 and 42 were all members of Person 29's patrol and Person 43 was the patrol commander of a different patrol.
368 The respondents submit that the Court should prefer the evidence of the respondents' witnesses on this issue as it was honest, accurate, materially consistent and largely unchallenged. By contrast, the evidence of the applicant's witnesses had material inconsistencies, including prior inconsistent statements of Persons 29 and 35, and material inconsistencies between each other. The respondents submit that the most striking effect of the change of position is that on the applicant's case, only he and his closest friends — Persons 5, 29, 35 and 38 — were in the tunnel courtyard when the tunnel was discovered. The respondents submit that it is wholly implausible that with two assault patrols inside the compound and three more outside, it just happened to be the peculiar combination of the applicant and his close friends, by themselves, who found the tunnel.
